The Protection of Employees (Temporary Agency Work) Act, 2012 was signed into law by the President on 16th May 2015. This Act basically gives the right to equal treatment to temporary agency workers in pay and terms and conditions of employment.
Pay can be claimed retrospectively to 5th December 2012. It also allows access to collective facilities at the hirer’s enterprise and abolishes recruitment fees. The following is an FAQ dealing with the main provisions of the Act.
Who is covered by the Act?
Agency workers who are defined as individuals employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for and under the direction and supervision of a person other than the employment agency i.e. the hirer.
A managed contract would seem to be outside the scope of the Act if it is the type of contract whereby the contractor genuinely supervises and manages the workers on a day to day basis e.g. facilities management company for security/cleaning. However, each and every operation would need to be scrutinised to ensure that the managed aspect is a not “sham” designed to circumvent the Act.
Also excluded by the Act are work placements administered by FAS, National Internship Scheme or any vocational training, integration or retraining scheme, financed out of public moneys as specified by Ministerial Order.
What are the entitlements of Agency Workers?
Agency workers are now entitled to the same basic working and employment conditions as if they had been hired directly by the hirer under a contract of employment. The wording in the Act is similar to the European Directive on Temporary Agency Work (2008) which gives it effect. The important issue to note here is that the agency worker has no comparator for the purposes of the Act but enjoys the same basic pay and conditions had he/she been recruited directly by that undertaking to do the same work currently being done on that particular assignment.
What are the “basic working and employment conditions“ referred to in the Act?
- Pay (see further definition below)
- Working Time
- Rest Periods
- Rest Breaks
- Night Work
- Annual Leave
- Public Holidays
How is pay defined in the Act?
- Basic Pay
- Shift Premium
- Piece work
- Unsocial Hours Worked
- Hours Worked on a Sunday
Furthermore, if the agency worker is covered by a future Employment Regulation Order (ERO) or Registered Employment Agreement (REA), the Act does not undermine the right to sick pay, pension or any other condition provided by the ERO or REA.
What is not covered as “pay” for the purposes of the Act?
Sick pay, pension schemes and financial participation schemes.
What is the exception known as “The Swedish Derogation”?
This is in respect of pay only. Section 6(2) of the Act basically says that if an agency worker is employed under a permanent contract with the agency and is paid between assignments then the equal treatment provisions do not apply. There are however certain minimum requirements that must be met before this derogation applies.
- The worker must have a permanent contract of employment with the agency
- The contract must have been given to the agency worker before the first assignment.
- The agency must pay at least half the pay (but at least the minimum wage) the worker would have received at his or her last assignment between assignments
What are the anti–avoidance provisions?
Under section 7 of the Act agency workers on a series of assignments with the same hirer cannot be assumed to be put back on a new contract each time a new assignment commences. This would in effect deny the worker the opportunity to accumulate service and other entitlements under employment law and is not allowed. However, a three month break between assignments would have such an effect.
Can a collective agreement between the Employer and Trade Union allow derogation from the Act?
Yes, in the same manner as it is allowed under the Organisation of Working Time Act. This involves registration at the Court but the Court is obliged to ensure that the appropriate checks and balances apply and that the agreement respects the overall protection of temporary agency workers before an agreement is registered.
What about hiring or recruitment fees charged to the agency worker by the agency?
These are now abolished under section 13.
Can agency workers access facilities ordinarily available to direct employees at an enterprise?
Yes. The Act says at section 14 that the hirer cannot treat the agency workers “no less favourably” in relation to access to collective facilities and amenities. The collective facilities and amenities are not listed in the Act but it would be assumed to include childcare facilities, canteens, gyms, transport facilities etc.
The agency worker is also entitled to be given full information about job vacancies with the hirer in the same manner as it is given to the directly employed workers.
How is a case taken against an employer who contravenes the Act?
The agency is liable with regard to contraventions of the pay and conditions provisions whilst the Hirer is liable for contraventions of the access to information and collective facilities provisions. If the Hirer fails to provide the necessary information to the agency for the application of equal treatment, then the hirer and not the agency becomes liable.
The agency worker(s), or trade union acting on their behalf, must submit their complaints to a Rights Commissioner service within six months of the alleged contravention with a subsequent appeal to the Labour Court.
This is not an exhaustive list of the provisions under the Act and neither should it be used as a legal guide, but instead sets out the main provisions on the bottom line entitlements for an agency worker. The first port of call for further information should be the SIPTU official or activist. The mission for trade unionists, as always, is to seek to achieve fair pay and conditions for workers above statutory thresholds.
- Equal Pay and Equal Treatment from day one
- Accumulation of service and entitlements
- Access to collective facilities
- Abolition of Recruitment Fees